Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon
[2025] ACTSC 65
•28 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon |
Citation: | [2025] ACTSC 65 |
Hearing Date: | 8 – 10 October 2024 |
Decision Date: | 28 February 2025 |
Before: | Ainslie-Wallace AJ |
Decision: | See [128] |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – trip and fall on staircase – heel of plaintiff’s stiletto caught on an ‘unfinished’ step while exiting First Defendant’s restaurant – whether First Defendant bore liability for the Plaintiff’s injury where it shared occupation of staircase with another business – where Plaintiff fell down side of stairs occupied by other business – no delineation of staircase between businesses – First Defendant removed tiles from whole of staircase and failed to replace or make good the stairs – by removing tiles First Defendant occupied and altered the whole of the area – First Defendant bore liability for injury – whether First Defendant negligent in failing to take steps to minimise risk of injury to the Plaintiff – whether risk of injury was foreseeable – First Defendant ought to have known that pitted and uneven tread on stairs posed a risk of tripping – whether contributory negligence established where Plaintiff wore stiletto heels – causation – where pre-existing injury all but resolved at time of fall – damages awarded |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ch 4, ss 42, 43, 45, 168 |
Cases Cited: | Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 |
Texts Cited: | Roger Haslam and David Stubbs (eds), Understanding and Preventing Falls (CRC Press, 1st ed, 2005) |
Parties: | Emma Pavey-Dray ( Plaintiff) Weomany Pty Ltd t/as Zaab Braddon ( First Defendant) Nicholas James Lourandos ( Second Defendant) Aikaterina Yiannakopoulos ( Third Defendant) Georgina Yiannakopoulos ( Fourth Defendant) Stephania Lourandos ( Sixth Defendant) |
Representation: | Counsel W Reynolds ( Plaintiff) D Shillington ( First Defendant) J Moffett ( Second to Sixth Defendant) |
| Solicitors Maliganis Edwards Johnson ( Plaintiff) Holman Webb Lawyers ( First Defendant) Mills Oakley ( Second to Sixth Defendant) | |
File Number: | SC 447 of 2022 |
AINSLIE-WALLACE AJ:
Introduction
1․On 23 November 2019 Emma Pavey-Dray (the Plaintiff) went out with her husband and other friends for dinner at Zaab Thai restaurant in Lonsdale Street, Braddon in the ACT. The Plaintiff had not been to the restaurant before that evening. She arrived at about 6pm and, because it was daylight saving, it was light outside. The Plaintiff and the others went to leave the restaurant at about 9.30pm at which time night had fallen. The restaurant was reached by three broad steps up from the footpath. The Plaintiff said that on leaving the restaurant, she approached the steps and put her left foot on the first step down from the landing and then moved her right foot to place it on the next step, however she said her left foot was “stuck” and did not move when she tried to lift it up and, as a result she fell down the stairs onto the footpath. The Plaintiff was injured and says that as a result of the fall she experienced and continues to experience pain, neurological and psychological difficulties.
2․The premises in which the restaurant was located is part of a larger space formerly occupied by a clothing store. Sometime in 2016, the owners of the leasehold (the Second, Third, Fourth and Sixth Defendants) divided it into two smaller premises and sub-let the two spaces, one of which, known as unit 2A, became the restaurant and the other a café business.
3․The premises are somewhat elevated from the footpath and the stairs from the footpath to the premises were in the middle of the two businesses. That is, all patrons of the restaurant or the cafe had to use the same set of three stairs, turning left or right at the landing at the top of the stairs depending on where they were headed.
4․Becky Khanthavongsa, a director of the First Defendant, was the owner and occupier of Zaab Thai restaurant. For the purposes of these reasons, I will refer to Ms Khanthavongsa as “the First Defendant” but understanding that she was an officer of the First Defendant company.
5․On 5 August 2016 on behalf of the First Defendant, Ms Khanthavongsa entered into a sub-lease of Unit 2A from the leaseholders. Although the lease was executed in August 2016, the First Defendant took possession of the premises on 19 May 2016. Before taking possession of the premises, there was certain internal work that needed to be done by the leaseholders such as providing a disabled access lavatory and a grease trap so that the premises could be used as a restaurant.
6․The First Defendant needed to fit out the premises as a restaurant and to that end she engaged builders and building certifiers. It was undisputed in these proceedings that no Development Approval was required for the internal fit out. Any work on the shop façade and street frontage required approval.
7․It is undisputed that sometime before the restaurant opened for business, the First Defendant made changes to the façade and street frontage, in particular she had the tiles removed from the stairs leading up to the two premises. A quote for this work dated July 2016 gave a price for demolishing the stair tiles and making good the concrete topping. The First Defendant agreed that the tiles were removed but she did not have the concrete topping made good. She agreed that she could have had the concrete stairs smoothed over to match the concrete interior of the restaurant or could have had the steps retiled. She did neither of those things.
8․In October 2016 the works were inspected and the First Defendant was told by the Building Certifier that as a consequence of the tiles being removed, the stair heights were uneven and needed to be rectified. That work was not done.
9․The First Defendant agreed that she knew that the work to the façade and street front required approval. In October 2016 the First Defendant contacted the ACT Planning and Land Authority thinking that a Development Application had been lodged to seek approval for work done on the façade and stairs but found that it had not. At this time the work had already been done. She was advised that she could either lodge a DA which would incur considerable expense or she could ask the occupier of the café to include her work in their DA already approved for work on the front of the building. The First Defendant wrote immediately to her neighbour asking for her work on the stairs to be included in their DA. She received no reply. She did not take the matter any further.
How the Plaintiff came to fall
10․The Plaintiff said that having put her left foot on the first stair, when she attempted to lift it up from the step, she noticed it “catching on something, like I couldn’t lift it up to complete the step and lost my balance”.
11․It was suggested to the Plaintiff that she was not sure how she came to fall because she is reported to have told medical staff at Calvary Hospital when she attended the day after the fall, that she had “tripped on a safety strip”. The Plaintiff did not recall giving that account but there is no doubt that is what is recorded. It was submitted that the Plaintiff did not know how she fell and was “speculating” about what caused her fall and, it was argued, the recorded hospital note demonstrates that. I do not accept that submission.
12․On 19 December 2019, not long after the fall, the Plaintiff saw Dr Rudzki, a sports and exercise physician and she reported to him that her stiletto heel had become caught in some “unfinished tiling” on the stairs.
13․The Plaintiff’s account of her foot “sticking” or being caught, together with where she said she put her foot immediately before the fall, (that is, that her left foot was on the first stair down from the landing where it became stuck), is inconsistent with the suggestion that she tripped on a safety strip which the photographs of the stairs show are located on the nosing at the front of each step, not at the back of the tread where the Plaintiff put her foot. I also take into account that the Plaintiff suffered a significant injury in the fall, falling as she did on her face, and she was in considerable distress when she went to the hospital and her evidence that she could not remember what she told the hospital staff about her fall. Finally, I accept the submission made on the Plaintiff’s behalf, that a notation made by admitting staff is not necessarily accurate and here, I would not accept it in preference to the Plaintiff’s consistent account of how she fell. I am satisfied that it is more probable than not that the Plaintiff felt her foot “catch” or become stuck immediately before she fell.
The state of the stairs
14․The Plaintiff engaged an expert in safety management and ergonomics, Denis Caduro to provide a report about the stairs at the time of the Plaintiff’s fall. There was no challenge to his opinion and he was not required for cross examination. Photographs taken of the stairs on the night of the Plaintiff’s fall and later by Mr Caduro show that the stairs were far from smooth. The surface of the stairs is pitted and gouged. Mr Caduro said that while the tiles had been removed from the stairs, the tile adhesive had not been completely removed leaving gaps and holes within the treads. He measured the holes to be between 10-15mm in diameter. He said that the tread surface is also uneven and remnants of adhesive remained on the surface of the treads. The photographs attached to his report show holes and gaps in the tread surface particularly towards the back of the tread.
15․Mr Caduro said that the gait of a person descending stairs is very different from a walking gait and, citing Mike Roys, ‘Steps and Stairs’ in Roger Haslam and David Stubbs (eds), Understanding and Preventing Falls (CRC Press, 1st ed, 2005), said that a typical gait pattern for descending stairs is that the user first visually assesses the flight for hazards or any unexpected problems while placing the leading foot near to the edge of the landing.
The user then proceeds to initiate descent, allowing the rear foot to swing past the landing nosing into the air about the next step. At the same time, the user bends the knee of the leg supporting his or her weight with the heel of the foot rising off the landing surface, at this point, the user is committed to taking the first step down the flight.
16․Mr Caduro said that stairs are inherently dangerous if all features of the stairs are not constructed correctly to Australian Standards to mitigate any potential hazards. He also said that a fall such as that experienced by the Plaintiff landing on the pavement would expose the person to a significant risk of serious injuries.
17․On the night she fell, the Plaintiff was wearing stiletto heels. The heel size of a stiletto heel is 10mm at the base of the heel. Mr Caduro posited that the heel of the Plaintiff’s shoe became trapped or impeded within the uneven stair tread causing her to fall. There was no argument that on stepping on to the first step, the heel of the Plaintiff’s shoe would have been placed at the back of the step where the tread met the stair riser. The photographs show that there were several holes and pits in the surface of the stair at that point.
18․Mr Caduro said that it was reasonable to accept that the Plaintiff’s injury was as a result of tripping and falling while descending the stairs when her foot was impeded on the non-conforming stairway due to the treads having an uneven surface impeding a person wearing high heeled shoes. His opinion is consistent with the Plaintiff’s evidence and the physical appearance of the stairs and I accept it.
Liability
19․The Plaintiff alleged that the First Defendant was negligent in failing to take steps to minimise the risk of injury to the Plaintiff. The particulars of negligence broadly allege a failure to warn the Plaintiff about the exposed grout and adhesive on the second step and in failing to erect a sign to that effect. It was also alleged that the First Defendant was negligent in failing to take steps to reduce the risk posed by the exposed grout and adhesive on the steps and in failing to replace the tiles on the stairs in a reasonable time.
20․In the result there was no evidence led to support the particular of negligence that the First Defendant failed to warn the Plaintiff and this alleged particular is not made out.
21․These proceedings are governed by the provisions of Chapter 4 of the Civil Law (Wrongs) Act 2002 (ACT) (the Act) while the duties of an occupier fall for consideration in s 168 of the Act.
22․Here, the First Defendant was the occupier of the premises and it was not disputed that she owed the Plaintiff a duty of care as an occupier to exercise reasonable care towards those lawfully on the premises, including employees and customers, and not to increase the risk of harm to those persons.
23․The relevant sections of the Act are as follows:
42 Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43 Precautions against risk–general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a)the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
…
45 General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
…
(b)the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3)In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
…
168 Liability of occupiers
(1)An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a)the state of the premises; or
(b)things done or omitted to be done about the state of the premises.
(2)Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(g)the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
…
24․The interplay between ss 42, 43, 44 and 168 was considered by Master Mossop (as his Honour then was) in Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 at [51]-[52]. His Honour said:
51. The obligations of an occupier are set out in s 168 of the Civil Law (Wrongs) Act 2002. As I indicated in Harris v Commissioner for Social Housing (2013) 8 ACTLR 98 at [144]-[146] it is not clear what useful consequence the legislature was attempting to achieve when enacting s 168. Although the section makes it clear that it replaces the common law rules about the standard of care that an occupier of premises must show to people entering on the premises: s 168(4), the test under s 168 is, in substance, the same as the common law although the factors in s 168(2) groups together a list of factors to be considered.
52. Although the legislature’s intention as to the relationship between the tests in s 42 and s 168(1) and in s 43(2) and s 168(2) is not clear (and worthy of some legislative consideration), I proceed on the basis that the provisions of chapter 4 of the Civil Law (Wrongs) Act need to be applied, in addition to s 168, in determining whether or not the second defendant breached its duty of care: s 41. Therefore ss 42, 43 and 44 are relevant to assessing whether or not there has been a breach of the second defendant’s duty of care and the test of causation in s 45 must be applied.
What was the risk and was it foreseeable?
25․Identification of the risk of harm is central to the application of s 43 of the Act because it is only once the risk has been identified can a reasonable response to that risk be evaluated. (Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330).
26․The risk here is that the rough and pitted surface of the stairs would cause a patron of the First Defendant’s restaurant to stumble on or fall down the stairs. The First Defendant had been told that the stairs needed to be repaired and the stairs “made good”, albeit to rectify the variation in riser height, however, given the First Defendant’s acceptance that the photographs taken by Mr Caduro and the Plaintiff of the stairs on or about the time of the fall accurately depicted the state of the stairs, she ought to have known that their pitted and uneven treads posed a risk to patrons using the stairs of tripping.
27․Although the First Defendant said she had not received complaints about patrons falling on the stairs, she accepted that she would have seen patrons wearing stiletto heels in the past, although not very often. However, it is not necessary for the Plaintiff to demonstrate that the risk is of a patron in stiletto heels catching a heel in a hole in the stairs and falling but that the uneven and damaged state of the stairs was such that it was foreseeable that a patron might lose his or her footing or trip on the uneven surface of the stair and fall. I find that the risk was foreseeable.
Was the risk not insignificant?
28․The undisputed evidence of Mr Caduro was that falls on stairs are notorious and the result of a fall on stairs can result in significant injury. The risk was not insignificant.
Would a reasonable person in the defendant’s position have taken precautions against the risk?
29․In considering the reasonableness of the measures taken by the defendant, it is necessary to examine the question prospectively: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126]-[129], and not reason from hindsight what might have been necessary to prevent the Plaintiff’s injury.
The probability that harm would happen if precautions were not taken or likelihood of the probable injury
30․The first defendant was not aware of other patrons falling or having mishaps on the stairs. She said that the patrons of her restaurant, as a rule, did not wear stiletto heels although she said she recalled some had in the past. That a risk of harm had not eventuated in the past might tend to show that the probability of its occurring is low, however, as the unchallenged evidence of Mr Caduro observes, falls on stairs are notorious and the harm from such a fall can be extremely serious and I find it is a risk that could not be ignored.
The likely seriousness of the harm or gravity and likelihood of the probable injury (s 168 (2)(a))
31․There can be no doubt that a fall down stairs can result in serious injury and damage. The consequences of such a fall can vary from minor to very serious injury.
The burden of taking precautions
32․Here, the First Defendant agreed that when she was advised that the removal of the tiles had left the stairs uneven she was quoted a small sum to make the stairs good. It would have been an inconsequential cost to the First Defendant to concrete over the steps to make them smooth and even.
The nature of the premises and the knowledge of the First Defendant of people being on the premises
33․The First Defendant conducted a restaurant and encouraged patrons to attend, and they in turn would expect safe entry and exit. The only way to gain access to the restaurant was by the stairs.
The ability of the person entering the premises to appreciate the danger
34․Here, the Plaintiff entered the restaurant in daylight but left when it was dark. The Plaintiff said that the lighting around the stairs was poor, a matter observed by Mr Caduro when he attended the premises to make the report. The pits and holes in which the Plaintiff said her heel caught were towards the back of the step near the beginning of the riser which would be relatively darker than the tread of the step. It was also the first time that the Plaintiff had attended the First Defendant’s restaurant and was thus unfamiliar with the stairs and certainly until she came to leave the restaurant had not seen the stairs at night.
Causation
35․Section 45 relevantly says:
45 General principles
(1)A decision that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the happening of the harm (‘factual causation');
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability).
…
36․Here, I am satisfied that but for the First Defendant’s negligence in removing the tiles and leaving the stairs in a damaged and uneven state the Plaintiff would not have fallen on the stairs. Given that the First Defendant’s business caused the Plaintiff to enter the premises it is appropriate that her negligence extend to the harm caused to the Plaintiff.
Occupation of the stairs
37․It was argued that the First Defendant’s lease of the premises only encompassed the side of the stairs leading to the landing in front of the First Defendant’s restaurant, and, indeed, the lease document reflects that with a line drawn through the middle of the two shop premises and down the stairs. It was argued that since the Plaintiff fell on the side of the stairs leased to the café next door, the First Defendant bore no liability for the Plaintiff’s injury. Whether or not the First Defendant’s lease referred to half the steps, she took it on herself to remove the tiles from the whole of the stairs leading from the street to both premises, and, in so doing occupied and altered the whole of the area. Whether or not the lease entitled the First Defendant to alter the stairs, she did. Further, she agreed that having removed the tiles from the stairs she would have been able to have new tiles laid or have the rough surface cemented over, but she did not do either. I do not accept that the terms of the lease absolve the First Defendant from liability given the First Defendant’s actions amounted to occupation of the whole of the stairs. It is to be noted that there was no delineation on the stairs to patrons ascending as to which side to use depending on where they were proposing to go.
38․I am satisfied then that in failing to address the defects in the stairs of which the First Defendant was well aware and which were of her own making, she permitted them to be in a state which posed a risk of harm to a person using the steps to enter or leave the restaurant to stumble or fall because of the uneven and damaged nature of the treads. In so doing I find that the First Defendant breached her duty of care to the Plaintiff and was negligent.
Contributory Negligence
39․The First Defendant argued that the Plaintiff contributed to her injury by failing to take reasonable care for her own safety in that she wore stiletto heels and used the stairs when she perceived the lighting to be poor and she would not see the stairs well.
40․The starting point for a discussion of contributory negligence is in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 529 where at 493 the plurality said:
… that in considering whether there was contributory negligence on the part of the appellant, the circumstances and conditions in which he had to do his work had to be taken into account. The question was whether in those circumstances and under those conditions the appellant's conduct amounted to mere inadvertence, inattention or misjudgment, or to negligence.
41․The Plaintiff said that when she left the restaurant it was dark, and she could not see the stairs. It was not suggested that the Plaintiff was unaware of the presence of the stairs and stepped “into the void” but that the lighting around the stairs was poor. It was not a particular of negligence that the lighting on the stairs was inadequate, but that the relatively poor lighting was relevant to the Plaintiff’s capacity to be able to assess the stairs for hazards and unexpected problems.
42․Here, the Plaintiff agreed that she was aware that stiletto heels can catch on objects on the ground although she said it had not happened to her in the past. She also agreed that one needed to be careful descending stairs. It was argued that when the Plaintiff appreciated that the light on the stairs was poor, she could have called for someone to take her arm and assist her down the stairs. Perhaps she could have but to not do so does not in my view amount to negligence in looking out for her own safety. In coming to that conclusion I take into account that her descent was the first time she encountered the stairs in poor light, that her foot was caught on the first step down, before she had even descended one step and that she was entitled to assume that the stairs did not contain holes that would trap the heel of her shoe. It is also relevant that regardless of the quality of the light, the location of the holes towards the back of the stair tread would have meant that they were in shadow and difficult to see even had she thought to look for holes.
Liability of the Third Parties
43․The leaseholders were joined as Defendants to the Plaintiff’s action and the First Defendant served a Third Party notice on them and repeats the Plaintiff’s claims of negligence, loss and damage against them and seeks indemnity and/or contribution from them in respect of the Plaintiff’s claim.
44․The Third Parties in their defence to the Third Party Notice asserted without contradiction that the terms of the First Defendant’s lease gave her exclusive possession of the premises (albeit not the whole of the stairs) and required her to keep the property in good order and repair. Further the Third Parties allege that the First Defendant had occupation of the premises and extended that occupation to the whole of the stairs.
45․There is no evidence that the Third Parties knew of the First Defendant’s alterations of the stairs, they were not informed nor were they under a duty to inspect the premises or part of them under the terms of the lease.
46․The First Defendant has not established liability in the Third Parties for the Plaintiff’s injury, loss and damage and no order for indemnification or contribution against them will be made. There will be a verdict for the Third Parties against the First Defendant.
Damages
47․When she lost her balance on the stairs, the Plaintiff fell heavily onto the right side of her face and head. She felt severe pain on that side of her face, and pain in the left side of her neck. She had abrasions on the right side of her face. As a result of the fall, the Plaintiff said that she was in a lot of pain down the left side of her neck, left leg and lower back. She had pins and needles in her left hand and pain in her left elbow. She had severe bouts of vertigo. She would become disoriented. Her mood was poor. She had constant headache which would sometimes become sufficiently debilitating that she took to her bed.
Pre-existing injury
48․The Plaintiff said that at the end of 2018 or early in 2019 she began experiencing pain and stiffness in her neck and right arm from the repetitive work she was then doing at Laser Clinics Australia. After consulting her general practitioner she was referred to a specialist, Dr Rudzki, a sports and exercise physician.
49․He diagnosed her as having scalene syndrome, a condition which causes pain in the neck and arm. Over the course of his treatment of the Plaintiff, Dr Rudzki tried a number of different treatments to address her pain and restricted movement.
50․The Plaintiff saw Dr Rudzki through 2019. At her last appointment on 19 November 2019, a matter of days before the fall, he noted:
She reports a dramatic improvement in a range of symptoms. In particular her chronic 5 to 10/10 neck pain has been abolished and she has an almost complete range of neck motion. She has some discomfort in her trapezius muscles which is 2/10 intermittent and is being addressed through a remedial massage therapist. Her referred pain to her elbow and right hand has also been abolished. Intriguingly she also reports being able to think much more clearly and also having a significant improvement in her normal menstrual mood swings.
51․Dr Rudzki thought there was no need for him to further review the Plaintiff.
52․The Plaintiff said that before the fall, she was feeling well and had been attending the gym three times a week and working full time. She was not having problems with her neck. She had complete range of movement. The pain and stiffness in her right hand and elbow had also gone.
53․It appears that at the time of the fall, the Plaintiff’s physical condition had vastly improved.
54․Dr Rudzki saw the Plaintiff on 19 December 2019 after the fall and his report notes:
She was doing extremely well until she had a fall on some restaurant steps three weeks ago. Her stiletto heels were caught in some unfinished tiling and she lost balance, rotated and landed awkwardly on her right hand side. She felt her neck flick to the right and then to the left in a whiplash like fashion. She developed immediate pain in the neck and subsequent pain in both arms with the right arm being worse than the left. She now has a chronic right arm pain and recurrent headaches.
55․On examination Dr Rudzki noted marked bilateral muscle spasm in her trapezius and that deep pressure over her trapezius reproduced the headaches she had reported. She was acutely tender over her right C5 and C6 vertebral margins. Dr Rudzki thought that she had suffered an avulsion injury to the right scalene muscles especially at the C5 and C6 vertebral body origins.
56․Dr Rudzki tried a number of procedures including steroid injections to the scalene origin which acted to abolish her left neck pain but she still complained of left shoulder blade pain and central neck pain. His last report dated 26 August 2020 noted that the Plaintiff had an excellent response to the steroid injection and said that the majority of her neck pain was “abolished”. He noted on examination that she had a markedly improved range of motion in her neck but flexion provoked pain. However, he noted that she still experienced neck ache and stiffness. He recommended physiotherapy. He did not seek to review the Plaintiff.
57․Although it was submitted by the First Defendant that by the time of Dr Rudzki’s last review of the Plaintiff, her pain, stiffness and other symptoms had disappeared, the report of Dr Rudzki does not support a complete recovery.
58․In March 2021, the Plaintiff’s general practitioner referred her to Dr Ronak Patel, specialist neurologist. In his report to the general practitioner of 30 April 2021, Dr Patel noted that the Plaintiff had a history of scalene syndrome and noted that after the fall she started getting symptoms, some of which persisted.
59․Dr Patel said:
[The Plaintiff] presents with symptoms suggestive of functional neurological disorder which has occurred following post-concussion syndrome. As you know, if post-concussion syndrome is partially treated or has had partial recovery it can increase the risk of functional neurological disorder.
60․Dr Patel recommended physiotherapy with a neurophysiotherapist and that the Plaintiff see a psychologist. On follow up, Dr Patel said that the Plaintiff reported improvement in her balance and ongoing improvement in her symptoms including headaches and general pain although she reported ongoing left sided symptoms. In his final report dated 10 January 2022, Dr Patel noted ongoing improvement although said that she still reported symptoms. He recommended she continue with physiotherapy and psychological treatment.
61․In December 2022, the Plaintiff was seen by Dr Romil Jain, a pain specialist, for ongoing treatment. In his report of 17 February 2023, he noted that she had undergone guided shoulder joint steroid injections from which she received some pain improvement. However he noted that she still had pain on the left side of her neck which radiates along her arm. In his report of 8 May 2023, Dr Jain noted that while the Plaintiff had achieved some improvement with steroid injections she was still “quite tender” in the left paraspinal region and he said she would benefit from radiofrequency ablation of the left cervical facet joint and he referred her for that procedure and pulsed radiofrequency of the left shoulder nerves.
62․The Plaintiff said that having had the first nerve ablation she experienced significant pain relief and it has been recommended that she have another on her left shoulder. She has been told that the effects of the ablation might last between 12 and 18 months. The procedure can be repeated if the effects dissipate. The Plaintiff said that the improvement in the pain in her neck has also improved her mood.
63․The Plaintiff was referred to Ms Martinez for psychological support and she continues to see her every 8 weeks.
64․For the purposes of the hearing, the Plaintiff was assessed by Dr Kathleen Cooke, a pain specialist. Her report of 1 September 2022 noted that the Plaintiff experienced neuropathic pain and sensitisation in the left neck and arm, lower back pain, referred pain to the left buttocks and foot and tension type headaches. Dr Cooke said that the Plaintiff’s upper limb symptoms are consistent with a whiplash type injury sustained in the fall. She said that the fall exacerbated her improving scalene muscle spasms. The Plaintiff’s ongoing pain and sensitivity in the cervical spine and headaches are consistent with having been as a result of the fall.
65․As to continuing treatment, Dr Cooke recommended ongoing physiotherapy and psychological support. In terms of prognosis she said it was “guarded as central sensitisation can take time to heal and [the Plaintiff] is already 2 years post injury when some improvement would have been expected.”
66․For the purposes of the hearing, the Plaintiff was examined by Dr Ash Takyar, psychiatrist. In his report of 8 April 2023, he said that the Plaintiff described new depressive symptoms post her injury, currently moderate in grade and pervasive. He said her symptoms meet the DSM-5 criteria for an aggravation of a pre-existing generalised anxiety disorder which was in near remission before the accident, and a major depressive disorder which has formed following the accident. He said she did not have depression before the accident.
67․Dr Takyar said he expected her psychiatric symptoms impact on her functioning and he expected her work to be affected by the symptoms through loss of working efficiency, pace and potentially attendance. He noted that she has coped with her current job.
68․He noted that she should continue to receive psychological therapy and suggested that she be referred to a psychiatrist for consideration of an antidepressant medication.
69․In terms of future improvement he said that he considered her condition to be stabilised given the time that has passed since the accident. He thought with or without medical treatment he would expect to see less than 3 percent improvement in the next year. His prognosis was guarded given the underlying physical injuries and their effects but also the continuation of the depressive and anxiety symptoms notwithstanding the passage of time.
70․The Plaintiff was also examined by Dr Tanveer Ahmed for the First Defendant. Dr Ahmed said that the Plaintiff suffered from a reactivation of a pre-existing generalised anxiety disorder. He suggested that her range of physical and psychological symptoms are a disproportionate reaction to the accident although he added that it appeared that it aggravated her pre-existing vulnerabilities both in relation to her unusual pain experience as well as her underlying anxiety. Dr Ahmed’s report is brief and it is difficult to understand from it how he came to the view that the Plaintiff’s complaints of pain are disproportionate to the injury considering the wealth of material from her treating practitioners about the effects of the accident, particularly the reports of Dr Rudzki. Dr Ahmed seems to place significant weight on the Plaintiff’s present working capacity of 22.5 hours per week with, it seems, little reflection on the course of her symptoms. I also note that there was no cross examination of Dr Takyar. Where Dr Ahmed’s opinion differs from that of Dr Takyar, I prefer his fuller, more reasoned basis for his opinion.
71․The Plaintiff was also examined for the First Defendant by Dr David Gorman, a pain management and rehabilitation specialist. In his opinion the Plaintiff suffered a soft tissue injury, concussion, and whiplash in the fall, all of which are resolved. He said the fall aggravated her pre-existing scalene syndrome and said that her development of more widespread symptoms and functional neurological disorder together with the symptoms and restricted movement in her left shoulder are unrelated to the accident. Unfortunately, Dr Gorman did not support his conclusion that the Plaintiff’s functional neurological disorder and shoulder symptoms were unrelated to the fall with reasons.
72․Neither Dr Patel nor Dr Jain was required for cross examination. Dr Gorman’s bare opinion, unsupported by reasons does not permit the court to assess the basis of his view nor to measure it against the detailed reports and opinions of other specialists who have a different opinion. I am thus unable to give his opinion weight in determining the issue of to what extent the the Plaintiff’s present symptoms are referrable to the fall. (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705).
73․The evidence satisfies me that while the Plaintiff had suffered from pain and restriction thought to be referrable to scalene syndrome, and associated with her work in the laser clinic before the fall, the report of Dr Rudzki of November 2019 powerfully suggests that at that time her symptoms had disappeared, and the Plaintiff’s evidence was that she felt well and had no pain or discomfort. I am satisfied that the fall caused both an exacerbation of her earlier scalene syndrome but, as Dr Cooke said, the Plaintiff’s upper limb symptoms are consistent with a whiplash type injury sustained in the fall. Dr Cooke said that the fall exacerbated the Plaintiff’s improving scalene muscle spasms.
74․Turning to the Plaintiff’s emotional state I find it is directly attributable to the fall and its consequences. Both Dr Takyar and Dr Ahmed considered the fall to have re-activated her pre-existing anxiety. Dr Takyar found the Plaintiff to be suffering from a major depressive disorder.
General damages
75․All of the evidence supports the Plaintiff’s account of how the fall has impacted her life in all its aspects. She continues to suffer pain and restriction in her neck and shoulder and the accident has affected her mood. Her capacity to work has been significantly impacted.
76․On the whole of the evidence a sum which would in my view appropriately address the Plaintiff’s pain, suffering and loss both in the past and in the future is $120,000.
77․Interest at 2 percent on two-thirds of that amount is to be allowed.
Economic loss
78․After working for a long period in the Catholic education system, the Plaintiff entered the beauty industry. In 2017 she commenced working full time for a company called Laser Clinic of Australia (LCA) where she worked as a laser technician. The work involved standing and repetitive movements of the right hand and arm and it was suggested that this work brought on her scalene syndrome.
79․The Plaintiff left LCA in about May 2019 and began working at Piper Lash which operated 4 salons. She worked in a managerial capacity for that business. She was working there at the date of her accident. The Plaintiff was working full time and earning $856 net per week.
80․Following the accident, the Plaintiff said she tried to resume her work at Piper Lash but from the outset found herself struggling to do the work because of the effect of her injuries. Nonetheless she continued to work for Piper Lash until the Covid lockdowns. During the lockdowns, Piper Lash closed three of its salons and the Plaintiff was no longer needed to work in a managerial capacity.
81․Ultimately in July 2020, the Plaintiff began working 4 days per week at a preschool as a support worker for disabled children. She worked there for 12 months. She said that she struggled with the work and found four days very difficult because she said she was in constant pain and she was exhausted at the end of the day because of it.
82․The Plaintiff said that the pain was debilitating, and she could not do certain activities. She could not stretch out her arms or lift or take things off shelves.
83․The Plaintiff left the preschool and went to work for a beauty training school, Australian Capital Training Institute (ACTI). She said she was hopeful it would give her a way of re-entering the beauty industry from a different perspective. She worked there 4 days per week and her average net weekly pay was $686. She left there in May 2023 because she found it difficult to keep on top of the administrative paperwork because she had difficulties in concentrating and focus. She struggled with memory and information retention. When she left, she was working 29 hours per week.
84․The Plaintiff said that when she left that employment she was suffering from mood swings, “… in the sense that [she] was becoming quite upset and in despair as [she] felt like [she] was losing [her] ability to be a functional employee.” She said that she was highly anxious.
85․The Plaintiff returned to work at the preschool where she is presently employed. She is still engaged as a support worker for disabled children although she works with children without disabilities as well. At the time of the hearing, she was working with little children between one and two years old. She is presently working 22.5 hours per week which is as much as she can tolerate. The preschool has offered her more hours of work but she feels that she could not manage to work more hours. Her present net weekly pay is $583.50.
86․The Plaintiff said that she did not think she could return to any of her other previous employments because she struggles with the stress of the work both from the pain and from her difficulties in concentrating.
87․The Plaintiff claims a net weekly loss of $200 representing past economic loss from July 2020 to the date of hearing. It was submitted that in her present position she is working fewer hours than before her accident and the claimed sum represents the average loss. In the circumstances, that is a reasonable figure which is supported by the Plaintiff’s past tax and work records. The Plaintiff calculated that loss from July 2020 to account for the impact of the Covid lockdown on her work.
88․Interest at 9 percent per annum is allowed on that figure as will superannuation on that sum at 11 percent be allowed.
89․As to the future, a sum of $300 per week is claimed because it was argued that but for the accident, the Plaintiff would have continued to work full time in the beauty industry and would be earning in the order of $55,000 per annum.
90․The Plaintiff’s evidence was that because of the repetitive nature of the work in the Laser Clinic, she experienced significant pain in her right arm which caused her ultimately to leave that work and move to a managerial position at Piper Lash because of the physical difficulties she encountered in the work at the Laser Clinic. There is little evidence about the availability of managerial positions in the beauty industry nor any evidence about what work the Plaintiff would have done in the beauty industry before the fall and because of the injury to her right arm through her work at the Laser Clinic. I am unable to conclude that but for the injury the Plaintiff would have continued to work in the beauty industry.
91․While she finds her continuing disabilities affect the number of hours that she can work in the role, it seems at least from the evidence that the pre-school has offered her more hours of work. Full time work therefore is open to her.
92․Given the limitations of the evidence about the Plaintiff’s future employment but for the accident, I propose to make an award of damages for future economic loss at $200 net per week.
93․In doing so I take into account that at the time of the accident the Plaintiff’s pre-existing injury had all but resolved. I also take into account that the Plaintiff has relevant qualifications in child care as a disability support worker which would allow her to work at least 4 days per week in a position similar to that which she presently occupied. The Plaintiff is presently aged 54 and I will adopt a retirement age of 67.
94․The amount of damages for future economic loss should be reduced by 15 percent for vicissitudes.
95․Loss of future superannuation at 12.5 percent on that sum is allowed.
Domestic Assistance
96․The Plaintiff is married and lives with her husband, her two children from a previous relationship and her husband’s daughter from an earlier relationship. One of the Plaintiff’s sons has disabilities and requires significant help in his daily life. Because of his particular disability he is most comfortable if the Plaintiff provides the assistance he needs and in the past she was the person who shouldered that burden. It seems that he goes out to activities during the day and some driving of him to those activities is required.
97․The Plaintiff said that while her son can dress and wash himself, he needs prompting and supervision. He cannot shave himself and she does that for him. He is unable to cook or provide a meal for himself. All domestic tasks are done for him. Although he has an NDIS package which would pay for assistance from workers coming to the house, because of his particular disabilities he is disturbed by strangers in the house and is not comfortable with anyone other than her, and now, her husband, attending to him.
98․The Plaintiff said that because of the pain, restriction and exhaustion she suffers as a result of the fall, she cannot do as much around the house as before. She estimated that her husband has stepped in where she is unable to do certain tasks and estimates that her husband does about 2 hours per day of extra work that she did before her accident.
99․The Plaintiff said that before her fall she attended to her son’s needs including driving to his various care programs. She estimated she did 95 percent of the work assisting her son. She also said that before the fall she attended to the majority of the domestic duties inside the house, although conceded that she and her husband shared the duties. She did the majority of the cooking and washing. At a time before the accident, the Plaintiff and her husband had engaged a cleaner.
100․The Plaintiff said that up until six months ago, her husband was shouldering about 70 to 80 percent of the burden of domestic tasks. She said that in the last six months she has modified how she does things so that she can do more. For example, she said that if a load of washing is heavy, she needs help to take it out of the machine but rather than hang the washing on the line, she uses clothes airers so she does not have to reach up.
101․Jeremy Gilchrist, the Plaintiff’s husband said that since the fall, the Plaintiff has not been able to do as much around the house as she did before. He said what she can do varies with how she is feeling although said that she does not do as much cleaning as before and would often ask him for assistance. He continues to offer her assistance to do things that she did without help before. Mr Gilchrist said that while the Plaintiff could drive her son to activities it was with difficulty and so he does it.
102․There is no evidence that before the accident and notwithstanding the Plaintiff’s earlier injury she was not attending to the domestic duties nor that she needed help. I am satisfied that the Plaintiff’s past need for assistance was directly related to the injuries suffered in the fall.
103․The Plaintiff’s need for domestic assistance was assessed by Mr Michael Malcomess, an Occupational Therapist and by Ms Sanda Colyer for the First Defendant. Mr Malcomess suggested that because of her physical restrictions the Plaintiff required some 20.5 hours assistance per week together with certain equipment which would assist her to do tasks. Ms Colyer felt that in the past the Plaintiff needed about three hours per week assistance and had no need for any assistance in the future. While noting that the Plaintiff said she was reticent to do certain activities because of pain and restriction, Ms Colyer said it was important for the Plaintiff to keep active and from that comment I presume Ms Colyer meant she should do that activity despite pain. Ms Colyer’s opinion as to what the Plaintiff requires is not consistent with the Plaintiff’s evidence and that of her husband as to how her pain, restriction and exhaustion affect her ability to do tasks around the house. There was no suggestion that either the Plaintiff or her husband were exaggerating or overstating the Plaintiff’s capacity and I accept their evidence.
104․In the result, the Plaintiff sought damages reflective of 14 hours per week for past assistance. The Plaintiff’s estimation of the assistance provided by her husband since the date of the accident is, of course impressionistic. She and her husband gave differing percentages to how much assistance he gave her in the house before the accident and how much he presently offers. Taking her evidence as a whole I am not persuaded that 14 hours of assistance per week is necessarily reflective of the actuality, and I propose to make an order reflecting 7 hours per week for the past to be calculated at $55 per hour as the parties agreed.
105․Interest at 2 percent per annum will be allowed on that sum.
106․As to the future, while the Plaintiff is still physically impaired, she has improved over time and while her prognosis is guarded in relation to her pain, there is some prospect through the nerve ablation procedure that she will have further improvement and will, in the future, be able to do more around the house. In fact in her evidence she said that since the accident she has changed the way she does certain tasks so that she can do more. It is difficult on the state of the evidence to predict when and to what extent any such improvement might occur. Rather than make an award of damages on the basis of an hourly rate, I propose to award a buffer of $70,000 to reflect the Plaintiff’s future need for domestic assistance.
Past Treatment expenses
107․The First Defendant argued that while Dr Jain arranged for the Plaintiff to have the nerve ablation to her left neck, there was no evidence why that procedure was necessary nor whether its need arose from the fall. Dr Jain in a report of 8 May 2023 on review of the Plaintiff noted that steroid injections into the C5/6 and C6/7 facet joints:
eased some of the pain and her movements are more free. She also had a left shoulder steroid injection which helped temporarily. … I noticed she is quite tender in the left paraspinal region and she would benefit from … radiofrequency ablation of left sided cervical facet joint along with pulsed radiofrequency of the left shoulder nerves.
108․The Plaintiff was referred to Dr Jain by her general practitioner for review and advice about ongoing management of the injuries sustained by her in the fall. Dr Jain’s reports to the general practitioner are directly referrable to the Plaintiff’s complaints of pain and tenderness arising from the fall. It is clear that the need for the nerve ablation recommended by Dr Jain was because of the persistence of the Plaintiff’s left shoulder pain.
109․I find that the nerve ablation procedure was directly related to the Plaintiff’s fall and as a consequence of the persistence of her pain. In coming to this conclusion I take into account that before the fall, according to the Plaintiff and Dr Rudzki, her pain and stiffness had completely resolved.
110․The sum of $23,736 has been claimed for those expenses and have been agreed. Interest of 9 percent per annum is to be paid on that amount
Future Treatment Expenses
111․The First Defendant argued that there was no evidence to support the claim for future treatment expenses. There was however, agreement as to the individual costs of the claimed expenses.
112․The Plaintiff claims compensation for future medical expenses being:
(a)Ongoing medication: $49 per week;
(b)Appointments and review by her general practitioner: $120 per appointment;
(c)Physiotherapy or neurological physiotherapy: $130 per session;
(d)Psychological counselling: $270;
(e)Review by a psychiatrist: $490 per appointment;
(f)Review by specialist neurologist: $350 per appointment;
(g)Review by a pain specialist: $350 per appointment;
(h)Cortisone or other pain management injections to manage shoulder joint pain: $700;
(i)Nerve ablation: $10,500; and
(j)Home improvements and other equipment to give domestic assistance to the Plaintiff: $20,000.
113․At the date of the hearing, the Plaintiff was regularly seeing a physiotherapist and a psychologist. She takes medication prescribed by her general practitioner.
114․The evidence suggests that at least so far as the management of her shoulder and neck pain is concerned, the nerve ablation treatment has given her more relief from her pain than other treatments that have been tried. The Plaintiff said that she was waiting for an appointment to have nerve ablation on different nerves. The Plaintiff was told that the treatment may give her 12 to 18 months relief from the pain, after which further ablation can be performed. The Plaintiff appeared willing to have further treatments in that event.
115․The Plaintiff is seeing a psychologist and Dr Takyar recommended that she continue to have psychological treatment and support as she has been having since the fall. That continued treatment is directly related to the reawakening of the Plaintiff’s “nearly in remission” anxiety and her major depression caused by the fall.
116․While the Plaintiff is not presently seeing a psychiatrist, it was recommended that she be assessed for the purposes of determining whether medication would assist her.
117․It is probable that in the future the Plaintiff will need to have some review and assessment and further treatment. The evidence does not permit a conclusion as to the frequency or kind of treatment that will be required, however at the date of the hearing the Plaintiff was still engaging with treatment and it is reasonable to conclude that she will continue to do so into the future.
118․As to the home improvements and other aids to assist the Plaintiff, it was estimated that a sum of $20,000 was appropriate to meet this anticipated expense. The Plaintiff has not to this date utilised any such aids and nor did she give evidence about home improvements which might assist her, although it is probable that in the future she may need such assistance.
119․The Plaintiff sought a buffer to accommodate these future treatment expenses. The Plaintiff is relatively young, 54 and her estimated lifespan is some 33 more years. I propose to allow the sum of $70,000 for future treatment expenses and home improvements.
Double Compensation
120․On the morning of the hearing it was announced that the Plaintiff had reached a settlement of her action against the Third Parties. A Settlement Agreement to that effect was tendered. In short, the Third Parties have agreed to pay $150,000 to the Plaintiff in settlement of her claim against them together with a portion of the Plaintiff’s costs and disbursements.
121․The First Defendant argued that having agreed to receive money in compensation for her injuries in the fall, the Plaintiff is barred from receiving any further compensation from the First Defendant in relation to the same injury.
122․The Settlement Agreement between the Plaintiff and the Defendants provides there be a judgment for the Defendants against the Plaintiff with the parties to the agreement to pay their own costs. In consideration, the Defendants will pay the Plaintiff’s costs and disbursements in the proceedings as they relate to the Defendants ($85,000) and the Plaintiff has the right to elect that the Defendants pay her $150,000 inclusive of interest and all statutory repayments in full and final satisfaction of all her claims against the Defendants.
123․Clause 3 of the Agreement provides that the Plaintiff must exercise her election to be paid the $150,000 within 28 days of either:
(a)Judgment being first entered in the Proceedings dispensing with all, or all remaining, claims in dispute in the Proceedings, or
(b)The Proceedings otherwise being entirely dispensed with by way of consent order, or
(c)The Proceedings being discontinued or withdrawn.
124․If the Plaintiff does not make the election as provided or does not require the payment of the identified sums, then the Defendants’ obligation to pay the identified sums is extinguished.
125․The Agreement continues:
4. DOUBLE COMPENSATION
4 1 The Plaintiff acknowledges she is not entitled to recover more than the value of the damages assessed and/or awarded by a Court arising out of and/or in connection with the Incident and/or the Proceedings
4 2 The Plaintiff agrees that should damages be awarded in her favour in the Proceedings, following a hearing of her claim on the merits, she is not entitled to recover both those damages in their entirety and the Settlement Sum.
4 3 Should the Plaintiff elect to enforce payment of the Settlement Sum after judgment is entered in the Proceedings awarding her damages arising out of and/or in connection with the Incident
(a) The Settlement Sum is to be deducted from any damages payable to the Plaintiff by way of any judgment entered in the Proceedings, and
(b) The Plaintiff agrees the Defendants’ liability to contribute the [sic] payment of any such damages awarded in the proceedings are to be reduced by the value of the Settlement Sum paid under this Agreement
126․In SAS Trustee Corporation v Budd [2005] NSWCA 366, Mason P (with whom the other members of the Court of Appeal agreed) said (at [33] and [37]):
The rule against double compensation may be invoked by one or more defendants. If it can be shown that the plaintiff/claimant has already received recompense in any form in respect of the loss for which compensation is claimed against the defendant invoking the rule, then the plaintiff’s loss requiring compensation from that defendant is regarded as discharged pro tanto. To award compensation with respect to that loss against that defendant would be to permit double recovery by the plaintiff in respect of a loss no longer calling to be compensated.
...
A defendant who invokes the rule against double compensation must establish that the plaintiff has already been compensated with respect to the relevant loss. Sometimes all that can be shown is that the plaintiff has received money from a third party without it being known what the payment was for. It might, for example, relate to legal costs of proceedings that were withdrawn. There may be uncertainty as to the nature of the receipt. In such circumstances, the defendant will have failed to make good the defence.
(Emphasis added.)
127․Critical to the resolution of this issue are the words “pro tanto” or “to the extent” which clearly show that the amount of compensation already received is, in effect taken into account in the ultimate consideration of damages. Here, should the Plaintiff elect to receive the sums specified in the Settlement Agreement, they would be deducted from any other award of damages ordered. I thus do not accept the First Defendant’s argument that the agreement to settle with the Third Parties has the effect of abolishing the Plaintiff’s entitlement to damages against the First Defendant.
Orders
128․For those reasons, I make the following orders:
(1)Verdict for the Plaintiff against the First Defendant.
(2)I direct the lawyers for the Plaintiff and First Defendant to prepare a minute of order to give effect to my findings as to damages.
(3)There will be a verdict for the Third Parties against the First Defendant.
(4)Costs as between the Third Parties and the First Defendant to be the subject of written submissions filed within 7 days of the publication of these reasons if not agreed.
(5)First Defendant to pay the Plaintiff’s costs to be agreed or assessed.
(6)By consent of the parties, and in accordance with the General form of consent order signed on 21 February 2025, there be no order for costs in relation to the First Defendant’s application in proceeding dated 4 October 2024.
(7)By consent, there will be a verdict for the Third Parties against the Plaintiff, in accordance with the General form of consent judgment filed in Court by leave on 8 October 2024.
| I certify that the preceding one hundred and twenty-eight [128] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 28 February 2025 |
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